Taiwan's “Criminal Code” and “Anti-Corruption Act” both provide for taking/offering bribes for a breach or a non-breach of the official duties, also known as the“offense of bribery,” which is the criminal provision that most often seen in corruption-related cases. However, the “quid pro quo,” a phrase not seen in the text of the bribery provisions, yet seen as the hidden or uncodified element, its existence in an individual case is often the core of the dispute between the prosecutor and the defending attorney.  

      A “quid pro quo” means a person who gives gifts or benefits to a public official as bribes in order to ask the public official to perform an act belongs to his/her duties or breach of his/her duties, and the public official receives such bribe as remuneration for his/her act subjectively. Meanwhile, there is a quid pro quo between the briber’s bribe or benefit and the specific act promised to be performed by the bribee. However, reciprocal gifting without special motives is a common social interaction in daily life. Those who intend to bribe or be bribed often use clever cover-ups for the gifts or benefits they give or receive. These people won’t expressly tell others that such gifts are remunerations for the public officials’ specific acts. Hence, how a court determines that a quid pro quo exists between the parties in an individual case is a question worth pondering.

      The Taiwan Supreme Court has held that when determining whether a quid pro quo exists or not, the court should not be constrained by the various definitions on the given properties, such as making use of gifts, honorarium, remuneration, consulting fee, or political contribution as the nominal reason. Instead, the court should consider the objective circumstances such as the actual content of the duties, the relationship between the giver and receiver, and the type, value, and time of bribe (Taiwan Supreme Court Precedent 84-Tai-Shang-Zi No. 1; Judgment 98-Tai-Shang-Zi No. 5370). In addition to inferring and proving based on objective evidence, the court should also consider subjective knowledge of  the giver and receiver and make a determination base on the totality of the circumstances. (Taiwan Supreme Court Judgment 103-Tai-Shang-Zi No. 4007)

      Although the aforementioned opinions are consensus among the practitioners and the academia, in practice, they are still quite abstract and lack concrete examination criteria for an individual case to apply. However, two recent judgments by the Third Court of the Taiwan Supreme Criminal Court are rich in referential value. They show us the new picture of the examination criteria for quid pro quo and how does it structured in the Taiwan Supreme Court's mind.

      The first case is Taiwan Supreme Court’s Judgment 109-Tai-Shang-Zi No. 2311 rendered on September 24, 2020. The judgment indicated that If a public official, after receiving gifts or benefits, shows unusual activeness in action, it can be reversely inferred that the parties were aware of quid pro quo among themselves. The judgment stated, “A quid pro quo in an official act needs to be determined based on objective circumstances such as the content of the duties, the relationship between the contact person, the type and value of the gifts or benefits, the time of exchange, etc. The parties’ subjective knowledge shall also be considered. More importantly, one needs to observe the objective result of the public official’s conducting or completing of his/her duties (extraordinary efforts or strong actions in legislative affairs or governmental audit). If the aforesaid protected legal interests have been injured (under normal circumstances, one does not need to pay, or normal gifting is allowed for regular services, but in this case, the gifting is out of the ordinary and unfair), one can infer reversely to conclude that the parties have the subjective knowledge that there is a quid pro quo between one party's official act and the bribe.    

    The second case is Taiwan Supreme Court's Judgment 109-Tai-Shang-Zi No. 4222 rendered on October 13, 2020. In this case, Taiwan Supreme Court indicated that the examination criteria for establishing a “quid pro quo” can be grouped into two examinable indicators: “deviation from normalcy”and“influence.”

    The“deviation from normalcy” indicator aims to determine if the giving and receiving fall into reciprocal exchange allowed by social norms, or if it is a deviation from social norms. Under this indicator, there are four sub-indicators: (1) The purposes of gifting: Whether a guarantee of no inspection or no audit on illegal act hidden in the gifting existed, or does it mean providing a supplementary compensation for the official act? (2) The relationship of gifting: Whether the gifting is built on the relationship of the official audit or is it like gifting among friends with no relationship of official act? (3) Whether the name, content, and value of the gift, and the place of consumption deviate from normalcy? (4) The nominal reason for the gifting: Whether it is related to the matter to be resolved or has been resolved? (5) The performance of the receiver after he/she received the gift: the objective circumstance such as whether the receiver behave differently after he/she received the gift? One needs to consider objective criteria such as the aforesaid and compare them against social norms and reasonable human nature.

      The “influence” indicator considers totality the following factors: (1) Whether the gifting is sufficient to influence the decision of the public official or affect the public’s trust toward the public official’s performance of his/her duties? (2) Whether the duties performed for specific related matters? (3) Whether the timing of receiving the gift is related to the decision made under the public official’s duties? Taiwan Supreme Court also emphasized that whether the gift in fact influenced the receiver and whether he/she performed the acts desired by the briber do not affect the court’s determination on whether a quid pro quo exists.

      The specific examination criteria established by the two aforesaid judgments will definitely impact defense practices for bribery cases in the future. Whether Taiwan Supreme Court will deepen their discourse on the sub-indicators under the two primary indicators of “deviation from normalcy” and “influence” is a topic worthy of our attention.

(Author: Hsin-Yang Lee, Intern Attorney at Formosan Brothers, Attorneys-at-Law)

‍